§ '(1) A person is guilty of an offence if:
- (a) he uses words which are threatening, abusive or insulting or behaviour which is threatening, abusive, insulting or disorderly, and
- (b) those words or that behaviour cause harassment, alarm or distress to another person, or
- (c) such words or behaviour are likely to harass, alarm or distress another person.
§ (2) Offences under this section may be committed in private as well as in public places, but a person using words or behaviour inside a dwelling does not commit such an offence unless the use is likely to cause harassment, alarm or distress to persons outside that and any other dwelling.
§ (3) In subsection (2) "dwelling" has the same meaning as in section 4(2).
- (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
- (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
§ (2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.
§ (3) It is a defence for the accused to prove—
- (a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or
- (b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or
- (c) that his conduct was reasonable.'.
and amendment (a) thereto, in line 6, at end insert—
'(c) causes a noise or noises which is or are likely to harass, alarm or distress another person and he has reason to believe that such noise or noises is or are likely to cause such harassment, alarm or distress.'.
Government amendments Nos. 15 to 17, and 19 and 22.
§ Sir Eldon Griffiths
The new clause and the amendments arise from the debris of the late and unlamented clause 5. The Police Federation said:
Clause 5 we regard in its present form as a legislative nightmare. We do not regard it as practicable in its present form and its present potential to do that which it is apparently intended to do is close to nil.When I arrived somewhat late in Committee, I was delighted to hear the right hon. Member for Manchester, Gorton (Mr. Kaufman) quoting those wise words. Although I would never accuse him of being a born again Christian, I was delighted to find that, in the intervening period between consideration of the Police and Criminal Evidence Bill and the consideration of this legislation, he had come a long way towards accepting at least the occasional wisdom of the police service. I welcome the right hon. Gentleman to the group of supporters of the Police Federation and hope that he will long continue to adopt that posture.
It would be wrong to rehearse in detail my new clause 1, because the House will wish most to hear the
§ (4) It is a defence for the accused to prove that his conduct was reasonable in the circumstances.
§ (5) A constable may arrest without warrant anyone he finds committing an offence under this section.
§ (6) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
§ (7) A person is guilty of an offence under this section only if he uses words which are threatening, abusive or insulting or behaviour which is threatening, abusive, insulting or disorderly and he intends his words or behaviour to cause alarm, harassment or distress or is reckless as to the consequences of his words or behaviour.'.—[Sir Eldon Griffiths.]
§ Brought up, and read the First time.4.30 pm
§ Mr. Deputy Speaker (Mr. Ernest Armstrong)
With this it will be convenient to take the following: Government amendment No. 12.
Government amendment No. 13, in clause 5, page 3, line 32 leave out from 'if' to end of line 7 on page 4 and insert
§ Government's explanation of their amendments, which, broadly speaking, traverse the same territory as the new clause. In the interests of starting this long Report stage at a good pace, the best thing that I can do is to allow my hon. Friend the Minister of State, Home Office to explain the Government's amendments.
§ Clauses 4 and 5, with which this series of amendments deal, are among the most important in the Bill. For a long time we have been conscious of the threat to our people from violent crimes—for example, rape, burglary, vandalism and assaults. We have been less conscious of that which affects large numbers of ordinary people but rarely gets into the headlines—the insults and harassment which distress the elderly, the poor and the lonely in the neighbourhoods of our cities, especially in high-rise buildings. Too often such crimes and harassment are ignored by the media. They are rarely tackled in the House because they do not have the political sex appeal of the larger crimes. The House will be going to the rescue of a large number of ordinary people if it passes the amendments.
We should be concerned primarily with the victims—the elderly, the pregnant women wheeling their prams in areas where they are set upon by hooligans, the black people in white neighbourhoods and, sometimes, the white 955 people in black neighbourhoods, who are confronted by gangs of youngsters who behave in a fashion with which we must deal.
I am glad that the Government's amendments, with the Opposition's support, have included the offensive literature, signs and other graffiti that can be used to cause distress and to harass.
I have just returned from Northern Ireland. I know, of course, that that region is not covered by the Bill. This morning I saw a sign which almost precisely illustrated the types of signs with which we should deal. After the petrol bombing of the homes of a large number of Northern Ireland police officers, especially three women police officers who were intimidated out of their flat by petrol bombs, signs were held up saying, in the language of the National Coal Board, "Go home to a nice warm fire. Join the RUC." By any measure that is insulting, but I am not certain that a court of law would necessarily, under the terms of the amendments, bring in a finding of guilty in such cases.
There is no doubt that the intention behind a sign which says, "Go home to a nice warm fire. Join the RUC" and which is held up in the neighbourhoods in which police officers live is crystal clear. Also crystal clear is the literature put out, I regret to say, by the GLC and some of the London boroughs in their attempts to insult, harass and cause distress to the police service.
I shall not argue the case for my new clause. I look forward instead to hearing the explanation of my hon. Friend the Minister of State of the Government's amendments, which more or less traverse the same ground as new clause 1.
§ Mr. Tony Marlow (Northampton, North)
The greatest environmental nuisance from which our people suffer is noise caused by their fellow citizens. The law is inadequate. The police and environmental health officers believe that it is inadequate. Large numbers of people in the inner cities whose life is made hell by noise from their neighbours certainly know that the law is inadequate.
The environmental health officer who deals with all the problems of pollution would be able to tell us that the greatest number of complaints that he receives on pollution concern noise and noise nuisance. It is a striking fact that in the past two years the number of complaints concerning noise has increased by about 25 per cent. each year.
I should like to give two examples. I remember coming up to London one evening at 8 o'clock. I got out of my car and heard the noise of a pop concert. It was the loudest noise in the vicinity. If I had tried to talk to someone on the street, I would have found it difficult because of the noise. I found out later that the pop concert was a third of a mile away from where I was standing. There must have been 250,000 people within earshot of that din. The concert had started at half-past 2 in the afternoon. No doubt the police had received countless complaints. As my hon. Friend the Minister will know, the police could do nothing about it. There was, of course, always the possibility of going to the environmental health officer, but, because it was Lambeth, no such officer was on duty at that time. Of course, he could have done little about the problem.
My second example concerns a letter from Mr. Bailey, a constituent of the hon. Member for Leyton (Mr. Cohen).
956 Mr. Bailey kindly sent me a copy of a letter that he sent to his Member of Parliament. The hon. Gentleman is not here, but I hope that he will not mind if I read a short extract. The letter stated:
as I am writing this letter, there is music playing from a flat loud enough to drown the television in my own flat … The particular flat in question had a party last night … and after a sleepless night … at 7.30 the music was still blasting out. This was Sunday evening. On Saturday evening there were five all night parties, so that evening was sleepless. Last Wednesday the flat that is making the noise tonight had had another all night party … All this … takes place in one section, one of the quadrangles of the estate on which I live, to say nothing of the fact that there are also parties being organised in other sections …These are not simply parties, a large number of them are paying businesses brought about by tickets being printed and issued in public houses … charges being made … the printed tickets advertise 'the blues party sounds' disco equipment, lights, DJs etc … Add to this you get a great movement of people wandering, running and shouting round the balconies, knocking doors at all hours, going from one party to another and back again, shouting across from one walkway to another at each other, bottles are broken on the walkways—milk bottles, wine bottles etc., walls are urinated on and to have to use the lifts in the morning is foul as you literally stand in pools of urine where the lifts are used as a public convenience.The position at present is that all that can be done by the police is that they can ask for the noise to be turned down, but it rarely has any effect as they have no power to reinforce this. The environmental health officer can be informed though cannot be called out at the necessary times".Mr. Bailey and the people who live near him, and the many thousands of other people in our inner cities, have a real problem to live with. It is time that we stopped tolerating the intolerant making life intolerable for many of our citizens.
As a result of the experience that I had with the pop concert, I wrote to my hon. Friend the Minister and asked what the Government could do about it. He kindly wrote back to me and said:Experience suggests that Part III of the Control of Pollution Act 1974 offers considerable scope for action against environmental noise … However, I agree that it does not always provide the perfect solution.We are not looking for the perfect solution, but we are looking for a solution. The letter continued:There can be a problem where the objective is to stop the noise, rather than prevent recurrence".I suggest to my hon. Friend that if he is in the vicinity of the noise he will find that it is a big problem. My hon. Friend's letter went on:successful action usually depends on the availability of the EHO to act during the night, during the holidays or at weekends and this unfortunately is not always possible. Enforcing a notice through the courts would, of course, take time.I have just proved to my hon. Friend that that is a great underestimate and is a problem as well.
A number of local authorities are anxious to take action to deal with this problem, but many of them are less aggressive in their supervision of this issue. In that context, one has only to look at the local authority run by that seminal influence on the philosophy of the Labour party, Mr. Bernard Grant—Haringey—to answer the question about whether the law is effectively applied there. My hon. Friend said in his letter:
the Public Order Bill currently before Parliament includes a provision for the creation of a new offence of disorderly conduct, which in certain circumstances could apply to the nuisance caused by noisy parties.957 That is this Bill. I welcome that provision and regard it as an invitation to help to reinforce the Bill by bringing forward my amendment. I may well seek to press it to a Division, but we shall see how we go.
A short article was published not long ago in Environmental Health. Opposition Members may be every bit as interested in that article as are Government Members, because many of their constituents suffer the same problem. The article stated:Early in 1983 the London Borough of Waltham Forest received a complaint about noise nuisance being caused by loud music, live and recorded, being played by a young couple (with two children and pregnant with a third), in a tower block. The nuisance was confirmed by an environmental health officer and despite verbal warnings it continued. In August"—hon. Members should bear in mind that the nuisance started early in 1983–a Section 58 notice was served on them both. Ten days later a contravention was witnessed by an environmental health officer. Legal proceedings were instituted and came to Court on the 8th November.The section 58 notice was served in August and legal proceedings did not come to court until 8 November. The article continued:The case was adjourned and there followed two more adjournments. The music at this time was still continuing to such an extent that one complainant took his family into bed and breadfast accommodation and another slept on a park bench.The Council then decided to seek an injunction which was granted on the 19th December. On the 23rd December the Section 58 case came to Court and the defendants were found guilty, and each fined £200 with £100 costs.They appealed against conviction and sentence but failed to attend the Crown Court hearing in May 1984.—the original nuisance having started well over a year before—In July the music started again, intermittently at first but then more persistently. On the 1st October a warning letter was sent and apparently ignored. The Council then reluctantly took action under the injunction and on the 4th December 1984"—nearly two years after the original offence—the case appeared in the High Court.The Judge found in the Council's favour but due to the now three children did not sentence the woman defendant. The man, however, was given 7 days imprisonment, suspended for 3 months. The Judge further ordered that the music should never again be a nuisance and after 10 pm should not even be audible anywhere outside their flat.I wonder whether the people have had even that success. That was two years of hell for all the people living in that neighbourhood and that was all that could be done under the law as it exists.
My hon. Friend is bringing forward his amendment which will make it an offence if anybody indulges in disorderly behaviourwithin the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.If such an offence occurs, a police constable will be able to ask the offender to desist and, if noise is the offence, to turn down the noise. If the offender does not do so, in the final event arrest will ensue. We need to know whether this will apply if a noise case is taken to court. Will the court interpret my hon. Friend's amendment as applying to noise?
We are anxious to know whether the law is wide enough and whether it can be applied. Many of the people who suffer are the weak, like the little old lady who has to put up with this din week in and week out. Under the present law, if the case is taken to court, the probability is that such a lady will have to go to court and testify. I ask the House 958 to think of the potential harassment, victimisation and intimidation she would have to consider. She would not go to court because it would not be worth her life to do so. To go to court is not a realistic alternative for her.
§ Mr. Jerry Hayes (Harlow)
My hon. Friend is right, but does he agree that the problem is even worse than he has outlined? There is a civil remedy, but no legal aid is available for those who take that sort of action. Because of the time-wasting tactics in such a case, the person that my hon. Friend describes would find herself with enormous court bills and no remedy at the end of the day.
§ Mr. Marlow
My hon. Friend is an expert in these matters, and I accept his advice. That is the reality of the problem, and the experience of many unfortunate people has taught them that they have no real remedy.
I look forward to what my hon. Friend the Minister has to say about his amendment. Will it remedy the situation? My amendment seeks to give the police powers which will be sensibly used, because the police are always cognisant of the overall necessity of maintaining public order. If this nuisance occurs and many people in the neighbourhood complain, the police will be empowered to go and tell the offender to desist. If he does not desist, the police will be able to take further action. Short of such powers, I do not know how we are to rid our neighbourhoods of this nuisance. I am sure that my hon. Friend will look at the matter as carefully as he can and, hopefully, will see what the Government can do to help.
§ Mrs. Elaine Kellett-Bowman (Lancaster)
I am slightly puzzled by the part of Government amendment No. 12 which reads:except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is distributed or displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.'.However, having seen such an incident once, a passerby would be less likely to do anything or become annoyed than someone in a house across the road who must look at an offending sign day in and day out. I should like to know why the amendment has been so worded.
§ Sir Geoffrey Finsberg (Hampstead and Highgate)
I support amendment (a) in the name of my hon. Friend the Member for Northampton, North (Mr. Marlow) to Government amendment No. 13. He has hit on an issue important to those of us who represent inner-city constituencies. Not a surgery of mine passes by without someone complaining about noise nuisance from above them or to the side of them. Such noise arises from parties of various kinds and ranges from guitars to bongo drums, all of which causes immense unhappiness. I suggested that such occurrences are not the everyday life of parliamentary draftsmen or Ministers' advisers. Consequently, they may not realise the problems faced by ordinary people who live in blocks of flats in inner cities.
The Minister is a robust Yorkshireman who comes from a part of the world that used to provide superb cricketers. He is therefore able to knock odd advice away from him and to say, "They may be right in detail, but I want this done. Find a form of words that will do it." I am sure that that is the wish of my hon. Friend the Member for Northampton, North, whose amendment I was delighted to sign, and that is what I certainly want. I do not want to be told, "We think that it is covered by the Bill, but it will 959 have to be tested in the courts." We do not want to be told, "It is rather difficult and we are not sure whether it can be done."
When my hon. Friend the Member for Northampton, North said that he might have to force this issue to a Division, there was laughter from the Opposition Front Bench. I do not find this a funny matter, nor do my constituents who have come to me with very real problems and who have been unable to sleep for weekend after weekend.
I do not expect the Minister to say that he accepts the amendment, because I know that no drafting by Back Benchers ever satisfies the rigid criteria of parliamentary draftsmen—and understandably so. I hope that he will accept that there is a real problem in this regard and say that if the amendment is not pressed he will return at a later stage with a form of wording that will cover the important issues that we are seeking to raise.
I hope that the Minister will understand that this is one of the two most frustrating types of case with which we must deal. At present we cannot help people. We can tell them to use the byelaws and to get three people to sign, but then those who have signed are subjected to unpleasant threats.
There is a case in my constituency at present of people who have done immense service for charity in London and overseas. One is now sick with heart trouble. The council moved those people to a quiet flat, but they are being harassed by a group of young 12-year-olds who constantly skateboard outside, thus making it difficult for them to sleep. When the woman remonstrates gently—and she is a gentle woman—with some of the parents, she is verbally harassed and told to mind her own business. That was not the phrase that was used, but I doubt whether the House would wish to hear the filthy language that exists even in Hampstead. The following night, until dusk, these skateboarding youngsters made life for my constituents utter hell.
That is also a form of noise, and while it may not be possible to bring it within the scope of the amendment suggested by my hon. Friend the Member for Northampton, North, it illustrates the point that a citizen should not be obliged to get the support of other citizens who are then exposed to the verbal harassment and intimidation that might follow.
The intervention of the police under reasonable circumstances would be a more pleasant way of proceeding for the innocent victims of extremely unpleasant circumstances. I therefore hope that the Minister will be able to give some comfort to our constituents who are so disturbed by all this.
§ The Minister of State, Home Office (Mr. Giles Shaw)
In responding to my hon. Friends, I wish also to speak to the Government amendments that have been grouped with the new clause. I thank my hon. Friend the Member for Bury St. Edmunds (Sir E. Griffiths) for having the generosity to move his new clause in such a rapid and courteous way. I shall attempt to deal with the subject of the new clause in my comments on the Government's amendments.
My hon. Friend the Member for Lancaster (Mrs. Kellett-Bowman) asked about the purpose of amendment No. 12. That relates to clause 4, which replaces the 960 existing offence of threatening behaviour in section 5 of the Public Order Act. Although the amendments propose a complete redraft of sections 1 and 2, they contain only two changes. The first was a point put to us by the police to reformulate the test of conduct likely to cause a breach of the peace, and clause 4 specifies parties to the conduct. However, in making the offence more specific, we unintentionally lost some of the conduct currently caught by section 5. In particular, clause 4 would not catch the situation where the defendant used threats towards one person in a way that was likely to provoke a violent response by someone else—for example, the victim's parent or spouse.
There was doubt whether certain other triangular conflicts would be covered. Amendment No. 12 puts this beyond doubt by inserting "or another" in the appropriate place in clause 4(1). In this respect it brings it into line with section 5 of the Public Order Act. That is why the amendment is so drafted.
§ Sir Eldon Griffiths
In my new clause and in the Government amendment, the offence is not committed where one person is inside a building and the other person is inside that or another dwelling. The problem is that if two flats are adjacent to each other and a vile notice in the window is visible to a person living in an adjoining flat, the other person is aggravated, annoyed, harassed and insulted, but the police can do nothing about it because the person who is harassed is in another dwelling.
§ Mr. Shaw
My hon. Friend will recall that in Committee we spent a substantial time discussing the extent to which the offence should extend to individuals within private dwellings. He will also be aware that the other part of our amendment refers to the display or writing of visible representationwhich is threatening, abusive or insulting.We made it quite clear that that does not have the same impact as words or behaviour outside. My hon. Friend is therefore right to say that in this case we are constrained by the privacy of separate homes. He will recall that if a person made an insulting remark or displayed a sign for the benefit of outsiders, that would be covered. But it would not be covered if it was within the same private dwelling. If that does not satisfy my hon. Friend, I shall take the matter up separately with him.
The main amendment is No. 13, which reflects the redrafting to clause 5. There are three changes of substance to which I should draw attention. Much the most important is the introduction of a victim. We said in Committee that we hoped to introduce such a requirement, but without going so far that the victim would be required to give evidence in every case. Some doubt was expressed as to whether we could square the circle in that way, but we believe that we have managed to do that by importing into clause 5(1) the additional requirement that the defendant's behaviour should be within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
The victim need not be someone who was alarmed, harassed or distressed, but someone who saw or heard the defendant's conduct and was likely to be alarmed by it. The prosecution will not necessarily have to produce the victim in court, but it will have to identify in each case who it was who was likely to be alarmed and so on. The 961 court's mind will thus be concentrated on the impact, or likely impact, of the defendant's behaviour on those who were around at that time.
§ Mr. Alex Carlile (Montgomery)
I well understand the basis upon which the changes have been made, and, of course, I welcome the concessions that have been made, but does the hon. Gentleman agree that the form of the amendment dealing with the likelihood of someone being affected is yet another example of the law paying slavish adherence to the hearsay rule? Does he not think that it is high time that the hearsay rule was re-examined in respect of offences such as this? Does he not think that it would have been far better to require there to be somebody who was actually harassed, alarmed or distressed, but to permit hearsay evidence to be given in court as to the fact that that person had been harassed, alarmed or distressed? I make the suggestion particularly in the light of the White Paper on criminal justice which was recently published in which the Government appear to accept the principle that we must re-examine the hearsay rule to see whether we need to adhere to it as tightly as we have.
§ Mr. Shaw
The hon. and learned Gentleman would have witnessed, if he had been a member of the Standing Committee, the substantial discussions that took place on how far we should go to provide an offence which would protect although it would identify those persons on whom a mischief was committed and which did not require such persons to face the defendant. The Committee was also concerned about the court relying solely on the evidence of the arresting officer or the officer bringing the charge.
The points made that convinced us that we were going in the right direction were, firstly, that there was a real need to protect the vulnerable members of society and not to require, in every case, the victims to be produced in court. We believed equally that it was necessary to remove as far as possible the accusation that there was a revival of the sus law and that it was not simply a matter of hearsay or suspicion. We believe that we have gone some way in the drafting of this amendment to achieving those aims.
Where an offence is committed a person must be within sight or hearing whom the officer can claim would have been likely to have been harassed, alarmed or distressed. The amendment still provides for more direct evidence to be produced, but if we are to protect the vulnerable from giving evidence in cases involving disorderly conduct from young hooligans we would not want that to happen in every case.
The victim must certainly be proved to be someone who had been alarmed, harassed or distressed or that the defendant's conduct was at least likely to alarm. The prosecution will not necessarily have to produce the victim, though it must identify who it was who was likely to be alarmed or distressed. In that way, the amendment will have the desired effect.
It is not enough for magistrates to feel that the person would have been alarmed or distressed, or that someone might have been so if present at the scene. They must ascertain who was there and whether that person was likely to be alarmed, harassed or distressed by the defendant's conduct. We believe that that is an important new safeguard which should help to quell any remaining fears that the disorderly conduct provision is a revival of sus.
The next change that we have made to clause 5(1) has been to delete the requirement that the defendant must 962 have reasonable cause to believe that his words or behaviour are likely to cause alarm, harassment or distress. That reflected the views expressed in Committee that we wanted to provide a defence for the defendant who was not aware and had no reason to be aware that his behaviour was likely to cause alarm and so on and that this safeguard might perhaps be achieved by reinserting "reasonable grounds to believe" as a defence. Clause 5(3)(a) of the amendment does that by providing a defence that the defendant had no reasonable cause to believe that anyone was likely to be alarmed, harassed or distressed by his behaviour. Clause 5(3)(b) provides a similar defence for a defendant inside a dwelling.
Finally, amendment No. 13 deals with a consequential amendment to clause 5 flowing from the deletion of clause 8(5). We initially considered an amendment similar to that I described earlier to clause 4 which would have brought within the offence the distribution or display of any writing and so on. However, if clause 5 were recast to catch the distribution of written matter, letters would come within its scope. That would go potentially very wide if the offence extended to all insulting or abusive correspondence which was likely to alarm, harass or distress. It would cut across the work on poison pen letters currently being done by the Law Commission. For that reason we decided to restrict clause 5 to the display of any writing, sign arid so on.
Amendments Nos. 15, 16, 17 and 19 are minor and consequential amendments to the amendment I have been discussing. The amendment moved by my hon. Friend the Member for Northampton, North (Mr. Marlow) draws attention to a very distressing position which he amplified in the examples he gave. It is his intention that we should add a new sub-paragraph to clause 5(1) which specifically penalises the causing of noise which is likely to harass, alarm or distress another person. I must tell my hon. Friend that we cannot accept his amendment as it stands because we have now deleted from the offence the phrase "reasonable cause to believe". However, I hope that I might persuade him that at least some of the examples that he has cited would be covered by the offence that we have revised. In introducing a requirement of a victim we deliberately provided that it should be someone within hearing or sight of the defendant so that noise alone is not excluded from disorderly conduct. Blowing whistles, banging dustbin lids and shouting obscenities would all come within the scope of the offence, as would some of the examples given by my hon. Friend the Member for Northampton, North as they are examples of disorderly behaviour. Using insulting or abusive words likely to cause alarm, harassment or distress will also come within the scope of the offence.
Disorderly conduct may well be appropriate to prosecute people who use noise to harass others, but it would still have to be proved to the satisfaction of the court that that was the intention of the use of the noise, or that the person was simply paying no heed to the consequences of using excessive noise in the street. Where there is persistent noise nuisance a special procedure under the Control of Pollution Act 1974 may well be appropriate and may well be a more appropriate channel to follow.
My hon. Friend the Member for Northampton, North drew particular attention to the problem caused by long and noisy parties which remain a persistent nuisance and cause distress and harassment to other residents in the area. Section 58 of the Control of Pollution Act 1974 enables 963 an officer of the local authority to serve a notice on the person causing the noise. My hon. Friend is well aware of the responsibilities which lie in those areas. If the recipient fails to comply with the notice, criminal proceedings may be instituted, although I accept that that does not bring swift satisfaction.
My hon. Friend must realise that if the new powers are not sufficient we must look again at the position to ensure that we have available the primary powers to deal with the nuisance caused by constant music noise. That power will be found within the Control of Pollution Act; music noise is not, of itself, disorderly conduct.
Of course, this is the first time that we have discussed this issue in the Bill. I therefore tell my hon. Friend that I am persuaded from what he has said that we should take more time to examine the problem and perhaps to enter into discussions with the police about it so that we do not take precipitate action. If my hon. Friend can supply me with further examples of the kind of problems he has addressed in his remarks and if there are gaps in the law, we shall see what we can do to fill them.
However, the extension of clause 5 in the way proposed by my hon. Friend's amendment will not help to ease the distress felt by neighbours as a result of noisy parties. I shall want to examine that point further and, as the Bill proceeds, we may wish to come back to that matter. I would be grateful to have the assistance of further examples from my hon. Friend or from my hon. Friend the Member for Hampstead and Highgate (Sir G. Finsberg), and I shall enter into discussions with the police on those issues.
In the light of those assurances, I hope that my hon. Friend the Member for Bury St. Edmunds will withdraw his clause and allow us to examine the procedure further.
§ Mr. Chris Smith (Islington, South and Finsbury)
Amendment No. 13 is a major improvement. We welcome the steps which the Government have taken to change the clause in the course of redrafting. However, we still have a number of doubts.
My right hon. and hon. Friends know only too well from everyday experience the difficulties which face many people, particularly in inner city areas, as a result of people who gather in some numbers and cause harassment, alarm or distress. On some of the council estates in my constituency youngsters gather at the bottom of staircases, around blocks or in dark corners and make a considerable amount of noise, frequently late into the evening. Many people, particularly single elderly people living on their own, go in some considerable fear of the activities of such people.
The answer to that problem lies in good sensible practical policing. Again, there are examples to be found in my constituency of tenants sitting down with council officers, counsellors and the local police to work out a programme of action to improve the physical fabric of such estates in order to reduce the opportunities for such gatherings and to discuss with the police how to patrol and deal with such action. In the cases where that solution has been tried it has worked and there has been much improvement.
The major practical response to such problems and difficulties, which all of us recognise exist, certainly all of us who represent inner city areas, must lie in 964 improvements to the fabric of our neighbourhoods and estates and in good sensible patrolling by police officers on the beat who know their local patch and the local people.
§ Sir Geoffrey Finsberg
The hon. Gentleman is describing a situation that we all know. Does he agree that, in addition to what he has said, it would also be helpful to allow the police on to the estates, where they can be of direct assistance to the people living there?
§ Mr. Smith
I would certainly agree that beat policing by police officers on council estates, and indeed in council blocks, is to be welcomed. In my area the local authority has issued a standing invitation to the police to do so. I particularly welcome close and careful discussion between tenants, the council which owns the property and the police to ensure that concerted action is taken to deal with such problems.
We still have some disquiet about amendment No. 13 and the new offence of disorderly conduct which the Government have brought forward in response to the acknowledged difficulty. First and foremost, we welcome the fact that the Government wish to include the presence of a potential victim. I stress the word "potential" because the amendment does not make the presence of a victim a necessity. Opposition Members would have preferred to see an actual victim and actual distress and harm having been caused for an offence to be committed. Indeed, we would have welcomed the suggestion made by the hon. and learned Member for Montgomery (Mr. Carlile) about the kind of evidence that might well be permissible in order to prove that actual harm, distress or alarm was caused.
Let me give one obvious example. If, on a council estate, an elderly tenant went in fear because of a gathering of youngsters and fear was caused, but the elderly tenant was reluctant, for understandable reasons, to give evidence in court, it should surely be possible, for example, for the tenants association on that estate to give evidence on that person's behalf. That would be a sensible way to approach the matter. However, the Government have come up with the formula of the presence of a person having to be demonstrated, but that the distress, alarm or harassment must simply be likely to be caused, rather than actually caused. We are worried about that, because it leaves us with a hypothetical action being the subject of an offence, rather than an actual action being the subject of an offence.
Secondly, we are worried that the Government have not seen fit to include, as they would have done if they had followed the advice of their own White Paper, the word "substantial" as a clarifying definition in the nature of the offence of causing harassment, alarm or distress. It would have brought back a distinction between inconvenience being caused and fear being generated, which is the nub of the problem in attempting to define an offence of this kind. We should have preferred to see the word "substantial".
Thirdly, we are worried that the burden of proof appears to have been changed in the amendment—the change which the Minister described—from the prosecution having to prove that someone had reasonable cause to believe that the use of the words or behaviour was likely to harass, alarm or distress, to the defendant having 965 to prove that he had no reason so to believe. That changes the burden of proof from the prosecution to the defence, and we are worried about the impact of that.
Those are our three major concerns about the clause as it would stand if the amendment were accepted. We are even more deeply worried about amendment (a) to the proposed amendment No. 13. We would not wish to see this amendment accepted, and we warn the Minister against too ready an ear being given by him to his Back Benchers. We are especially worried about the difficulty of definition. All of us who represent inner city areas, where people live close together, accept and acknowledge that there is a noise problem. However, we do not believe that inserting noise into the list of potential offences in the clause would present a solution to that problem.
§ Mr. Marlow
I understand what the hon. Gentleman says. Does he agree that action of some sort needs to be taken to reinforce the law with regard to the noise nuisance which he has been discussing?
§ Mr. Smith
If the hon. Gentleman will wait a moment, I shall answer his point. It is difficult to distinguish between the noise which is an inconvenience to others but which would not, in all reasonableness, be described as a criminal offence, and the noise which, because of its loudness, persistence and close proximity to others, should become subject to the criminal law. We are worried because, if the hon. Gentleman's amendment were accepted, it would be difficult for the courts to know where to draw the line.
§ Mrs. Kellett-Bowman
Does the hon. Gentleman agree that the amendment might have a deterrent effect if it were put on the statute book? People might think twice before acting in such an inconsiderate manner.
§ Mr. Smith
I am always doubtful about legislating for reasons other than to create an offence. It is not sensible to legislate to give messages to the general public. However, action can be taken, and I would welcome any moves to make a civil proceeding on issues of noise easier for the public to undertake. At present, it is a daunting and difficult process for ordinary members of the public to undertake.
§ Mr. Marlow
If there is a robust group of young people who consistently make a lot of loud noise, and if there is an elderly, relatively defenceless citizen in proximity who is persistently and consistently abused by this noise, how can the hon. Gentleman suggest that it would be possible to take a civil remedy? How could that person, with all the potential intimidation that would be present, pursue a civil case through the courts—
§ Mr. Smith
Many suggestions could be made, including making it much easier to use the local authority environmental health service to assist in such action. The Opposition would prefer such a procedure to be examined, rather than the Government seeking to put a sweeping power on to the statute book which could be open to wide misinterpretation.
The Opposition would also say—this is a crucial matter—that it is much better to endeavour to prevent such distress, alarm and noise from taking place than to attempt to create offences after the event. We must enable 966 local authorities to improve the standards of their estates and neighbourhoods. We should pursue that route vigorously.
§ Sir Geoffrey Finsberg
The hon. Gentleman has tried to find a way through a difficult problem. Does he accept that the majority of environmental health authorities are open only during normal working hours and that much of the trouble occurs outside those hours? Does he also accept that much of the noise nuisance occurs in purpose-built blocks of council flats which have not been affected by a lack of money for maintenance? Even if they were superbly improved as the hon. Gentleman wishes, doors and windows would unfortunately still be left open arid the noise would pour out. Does he accept that changing the civil law to make it easier and quicker to obtain redress will not help those whom he and I wish to help?
§ Mr. Smith
I did not wish to turn this into a party political debate, but it grieves me to hear a Member who supports a Government who have withdrawn rate support grant from local authorities and rate capped authorities in inner cities say that environmental health offices are not open for long enough, and that environmental health officers are not available in sufficient numbers or at the right times to assist tenants in such circumstances.
§ Mr. Smith
That is a major problem, and cuts in resources available to local authorities are a major cause of that problem.
We are considerably worried about some aspects of the Government's amendment. We are especially worried about the absence of a victim, and the fact that the victim need only be a potential or likely victim. Some aspects of the offence are similar to the sus law, which is bad for those who must be protected from such behaviour and bad for the police.
Although the Opposition have that major reservation, we shall not divide the House on the amendment, because major advances have been made on the original clause in the Bill that we debated on Second Reading. We are worried that the delicate balance between protecting the peace and quiet of individual citizens and protecting the civil liberties of other citizens, which the Bill is all about, has not yet been struck by the Government. Despite our worries, we welcome the improvements which were won in Committee and which the Government have introduced in the amendment.
§ Mr. Robert Maclennan (Caithness and Sutherland)
I welcome the Government's attempt to meet what was 967 undoubtedly the most serious matter debated in Committee on clause 5 and its ambit. The Minister will agree that no issue exercised more hon. Members from different parties. It was recognised that the Government's Bill was quite out of line with their own White Paper and that the new offence which was being created would not require the presence of a victim or that the victim should have suffered serious harassment, alarm or distress. The Government have made an important amendment, broadly in line with what the Minister promised in Committee. He has, therefore, made a measurable improvement to the Bill.
I still have doubts as to whether the Minister has wholly squared the circle, as I think he put it in Committee, in that I suppose it will still be necessary to demonstrate by evidence that there was such a victim. That will place upon the police some requirement to prove that there was somebody there and that the somebody was not just a figment of an overheated imagination. So the presence of the victim in court may on occasion be a necessary part of the process of obtaining a conviction under the clause as amended. I am bound to say that I do not think that it is necessarily a bad thing. There will be many cases where evidence of this kind which obtains convictions will act as a strong deterrent to behaviour of the kind that the clause is designed to catch.
§ Sir Eldon Griffiths
The hon. Gentleman has a very good point. I am sure that he will accept that where the police can find a suitable person to come forward, a robust person who is not likely to be intimated by others, they will wish to produce such a person to the court. The point that we are really getting at here is that some people are fearful of the consequences of giving evidence. That is the heart of the matter.
§ Mr. Maclennan
That is right. That is why the Minister was sensitive to the need to try to avoid a situation in which a conviction could not be obtained without the evidence of the victim. The Minister has made an appreciable move. I welcome it, and I do not propose to seek to divide the House on the amendment.
§ Mr. William Cash (Stafford)
Having had experience of a peace convoy and its activities in and around my constituency in Stafford, where a considerable amount of alarm was caused to the local community and to individuals, I strongly welcome this amendment, which has been given careful consideration by the Government. I am sure that the chief constable of Staffordshire, who has helped to work out proposals which would enable these measures to go through, will be equally pleased, as will my constituents.
§ Sir Eldon Griffiths
It falls to me now to propose whether new clause 1 be pressed. Perhaps I can comment very briefly on what my hon. Friend has had to say.
I cannot see that the Government's amendments are vastly better than new clause 1, but I accept, of course, that, with the benefit of parliamentary counsel, which was not available to the Police Federation when I drafted new clause 1, the Minister is likely to be better advised.
I was for my sins chairman of the Noise Council while Minister at the Department of the Environment, a task that I think my hon. Friend took on himself somewhat later. 968 I also drafted, or was the Minister responsible for drafting, much of the Control of Pollution Act 1974, carried through by the successor Government when we lost office. I am conscious of the limitations that it imposes on those who wish to bring actions for noise nuisance. I subsequently became president of the Association of Environmental Health Inspectors and discussed with its members on many occasions their difficulty in enforcing that law. My hon. Friend the Member for Hampstead and Highgate (Sir G. Finsberg) was quite right in saying that it is sometimes very difficult to find an environmental health inspector on a Saturday evening when much of the nuisance occurs.
There is a problem here, and my hon. Friend the Minister genuinely accepted it. I understood the reservation expressed from the Opposition Front Bench about it. I would have thought, however, that at least in some cases the phrase "disorderly behaviour within the hearing"—the words in this clause—would catch at least some of the worst forms of musical noise that are persistently directed at people and cause distress.
I hope that my hon. Friend will look into the matter seriously. I think that I can say that the police service will be anxious to co-operate with him, because one is conscious of the fact that there is unlikely to be legislation of this scope again for some years. We might as well deal with it now as wait for what could be a decade or more to have another vehicle as apt as this one to tackle the problem. So I hope that my hon. Friend will press on seriously with his consultations with the police to see if he can produce a solution before the Bill goes to another place.
§ Sir Eldon Griffiths
I was going to say that at the end of my remarks but my hon. Friend allows me to say it now. The police dislike being dragged into arguments about whether music is noise or music. Some may think that Beethoven is noise; others may think that bop is noise. There is a problem here, and definition is a tricky matter. However, it may be possible for the Minister to come up with some solution before the Bill concludes its processes through the House.
I have one technical point to make to my hon. Friend in respect of Government amendment No. 12. He sought to deal with my intervention and that of my hon. Friend the Member for Lancaster (Mrs. Kellett-Bowman). May I try again to explain what is bothering us? If I were to put up in my back window a most offensive notice which was provocative to my immediate neighbour looking through his back window, that could certainly qualify as behaviour which was caught by this clause.
The note that my hon. Friend very courteously passed to my hon. Friend the Member for Lancaster and me contained the advice that all the affronted person had to do was to step outside his house. Then, if he could see the notice displayed in his neighbour's window, the offence would have been created. Alas, with back-to-back houses, particularly when one is ten storeys up, if I were to step outside my house in such a fashion as to be able to see that offensive notice, I would immediately fall a considerable distance and break my neck in the process. The only way 969 that I can step outside is through my front door, and from my front door, by definition, I cannot see what is visible through my back window.
This is a simple practical problem. I know that my hon. Friend, in his diligent manner, will address it, and I look forward to his taking care of it in another place.
The Government have the balance right between not reintroducing sus and avoiding the practical problems of the police being unable in all circumstances to provide a victim who is willing to come to court. It is because I think that the Government have the balance right that I beg to ask leave to withdraw the new clause in favour of the amendment of the Government.
§ Motion and clause, by leave, withdrawn.
§ Mr. Deputy Speaker
No. We will come to the hon. Member's amendment in due course. We have already discussed it.